M.L. Jain, J.
(1) The marriage between the parties was solemnized on 181-1974. A male child was born to them on 9-10-1974. It is in evidence that the child is suffering from some sickness. On 18-10-1975, the wife filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (the Act). The husband also filed a similar petition on 19-11-1975. The wife's petition was dismissed but that of the husband was decreed on 21-9-1976. The wife came in appeal to the High Court where reconciliation took place on 17-5-1977. The husband carried the wife with him and two days were given to them to report how they were pulling on. On 19-5-1977 the counsel for the parties reported that the compromise has come into effect and there was resumption of cohabitation. However, the wife left the house of the husband on 9 6-1977 The husband then filed a petition for divorce under Section 13 of the Act
on the ground of desertion on 28-1-1981. The petition was dismissed by the learned Additional District Judge on 30 8-1982. Hence, this appeal.
(2) I have heard the parties and perused the record. I attempted reconciliation but could not succeed because of the hard posture adopted by the husband. The case of the husband is that the wife left the matrimonial home on 9-6-1977 without his consent. Some nine-ten persons including her parents, brothers and sister came to his house in his absence, abused his mother and took away the wife. The wife's case is that she was beaten and turned out from the house. Her further case is that the husband is interested in some other girl, Rita (RW 2) and that is why he has turned her out and that she has always been ready to go and live with her husband Along with her son in spite of his affair with Rita and in spite of the beatings given to her. It is the husband who does not want to keep her. She even went to the matrimonial home on 9-8-1981 when the grand father of the husband died. thereforee, the short question that fl for determination in this case is which story to believe.
(3) The husband Harish (Public Witness 1) deposed that the wife lived at his house up to 9-6-1977 when she left it in his absence. Her parents and their men abused his mother and his younger sister who alone were there present, and carried the wife. Next day, be sent his friend Prem Prakash (Public Witness 2) to her father's house but they refused to send her. Ram Parkash (Public Witness 3) is the father of the husband He deposed that he was not in town on 9-6-1977. He personally did not know what transpired on that day. His wife and the wife of his younger son were present. He did not know if the husband and his mother had turned the wife out. Husband's mother, Smt. Usha (Public Witness 4) deposed that the respondent left her house about 4' years back. She and the wife of her younger son were present at the house. She asked the respondent not to go in the absence of the husband. But the wife asked her who was she to stop her. She rebuked her. Thereafter the wife and her parents did not send her back. It is obvious that the story put forward by the husband that the wife was taken away by the parents by force is not supported by his father or by his mother.
(4) The learned counsel for the appellant submitted that the story of the wife with regard to beating cannot be believed because the wife has deposed that she had lodged a report with the police, but that report was not produced. I do not think that non-production of the report can disprove the charge of beating. The Police may not have even recorded such a report. It was further pointed out that the husband had sent his friend and colleagues Prem Parkash (Public Witness 2) to bring her, but she declined to come. If she had an intention to live with her husband, she would have returned with Prem Parkash, Prem Parkash (Public Witness 2) deposed that he was sent to her house on 10-6-1977, but her parents refused to send her, but in cross examination he admitted that he was not acquainted with the wife or her parents. The respondent stated that she did not know him. In these circumstances, it was only proper that the husband or his parents should have gone to fetch the wife, and should just not have rest contended by sending a third person. The husband alleged that during her stay in the house, the wife used to quarrel with him and other members of the family and insulted her in-laws, though he had great affection and love for her. She has joined the service in the firm of her father. She always had an upper hand on him. Yet he loved her, while she always rebuked him. No one has supported him in these allegations. The wife denied all these allegations. She stated that she had no complaint against the husband or against his parents except about his connection with Rita. It is still in her mind. She still continues to be unmarried, though her younger sister has been married. She also produced two letters written by Rita to the husband and one by the husband to Rita in order to show the extent for their relationship. The learned counsel for the appellant made much of her statement to urge that as long as the wife is suspicious and refused to forget his affair with Rita, it is not possible for the parties to live together and as a matter of fact it was for that reason that the wife left the house of the husband. She accused that her husband wanted to marry Rita and similar questions were put to the father and the mother if they were inclined to marry the appellant with Rita. It was, thereforee, an indication of an intention on the part of the wife not to live with the husband and leave the matrimonial home for good. That is why her father did not have her name deleted from the ration card. I am not impressed by these submissions. The wife is ready to forgive and forget but the husband is adament and refuses to reciprocate.
(5) The learned Additional District Judge believed the story of the wife. He observed that the husband failed to give any reason for the respondent's forsaking him while he claimed that she enjoyed all his love and affection. The learned Additional District Judge found that the respondent was compelled to leave the matrimonial home. The learned Additional District Judge observed that the father of the husband Ram Prakash (Public Witness 3) could not dare deny that the wife was turned out of the house by the husband and his mother. it was never the case of the husband that he over tried to persuade the wife to return home. He did not go to bring her back. Nor did he care to find out the reasons for the departure. His parents also did not go to bring her back. The learned Additional District Judge remarked that the husband not going himself, not sending his close relatives to the wife's house to effect reconciliation in itself is a circumstance to show that he was totally indifferent and had no genuine intention to live with the respondent wife.
(6) After going through the record of evidence, I am inclined to agree with the findings of the learned trial Judge that it was not the wife who deserted the husband but it was the husband who had no intention to keep the wife. I am also impressed by her sincerity and believe her when she says that in spite of the harsh attitude of the husband, she is prepared to make home with him.
(7) In Lachman Utamchand Kirpalani v. Meena alias Mota, : 4SCR331 , it was observed that for the offence of desertion, in so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring the cohabitation permanently to an end. Similarly, two elements are essential so far as the deserted spouse is concerned : ( I ) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Even if the wife, where she is the desert ing spouse, does not prove just cause for her living apart, the husband ha still to satisfy the court that the desertion was without just cause. Viewed in this light, it is quite obvious that the wife in this case has no animus to leave the matrimonial home. Rather the husband has failed to show any reasonable cause for not bringing the wife back. He has failed to prove that the desertion if any was without any just cause. The wife has not left his house with out his consent. It is he who has turned her out. On the other hand though the conduct of the husband gives her a reasonable cause and excuse not to return to the matrimonial home, yet she has intention and will to return and make home for herself and her child. She does not want the separation to become permanent. The husband is the erring spouse and wants to take an advantage of his wrong. He cannot be allowed to succeed.
(8) I, thereforee, find no merit in this appeal, I uphold the order of the trial court and dismiss the appeal. Costs of the appeal shall be borne by the husband.